BVA9501168 DOCKET NO. 93-08 560 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Daniel J. McTavish, Associate Counsel INTRODUCTION The veteran served on active duty from November 1942 to January 1946. The veteran's original claim of service connection for a left knee disorder was received in March 1990. The St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for this disorder by rating action dated later in March 1990. The veteran appealed this decision and in September 1990, the Board of Veterans' Appeals (Board) entered a decision which, in pertinent part, denied service connection for left knee disability. In June 1992, the veteran submitted a request to reopen his claim for service connection for a left knee disorder. This matter now comes before the Board on appeal of an August 1992 rating decision in which the RO denied service connection for the claimed disorder, finding no new and material evidence had been submitted for the purpose of reopening this claim. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he sustained an injury to his left knee during an obstacle training exercise during service, that he experienced residual pain following the injury that continued both during service and after discharge, and that as a result of the injury he ultimately required the knee surgery which was performed in December 1955 to repair a torn medical meniscus. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that there is new and material evidence to reopen the veteran's claim for service connection for a left knee disability. FINDINGS OF FACT 1. In a decision dated in September 1990, the Board denied service connection for a left knee disability. 2. Since that decision, the veteran has presented testimony which is relevant and probative, and which presents a reasonable possibility of a changed outcome. CONCLUSION OF LAW The Board's decision of September 1990, which denied service connection for a left knee disability, is final; however, new and material evidence has been presented to reopen the claim for service connection. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION On review of the record, the Board finds that the veteran's testimony, which was presented at a personal hearing at the RO in January 1993, presents a well grounded claim. 38 U.S.C.A. § 5107(a). Moreover, for the following reasons, we find his testimony to be new and material. In effect, the veteran testified that he sustained a left knee injury in service that resulted in knee pain which he was able to tolerate, but which nonetheless continued during and after service, ultimately requiring knee surgery in December 1955. The evidence previously of record at the time of the Board's September 1990 decision had already shown that the veteran was treated for knee symptoms in service and that he subsequently underwent surgical repair of a torn left medial meniscus in December 1955. However, the basis for denial at that time was that there was no evidence in the record showing continuity between the treatment noted in service and the development of the knee disability for which the veteran received in December 1955. Thus, the testimony given by the veteran in support of his claim to reopen, evidence which is presumed to be credible under Justus v. Principi, 3 Vet.App. 510 (1992), is relevant and probative, since it bears directly on the question of whether there was continuity of left knee symptomatology. Accordingly, the Board finds that the veteran's January 1993 testimony must be considered in conjunction with the other evidence of record in order to fairly decide his claim for service connection for a left knee disability. The claim is thus reopened on the basis of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER To the extent that the claim for service connection for a left knee disability is reopened on the basis of new and material evidence, the appeal is granted, subject to the following remand action. REMAND In view of the Board's finding that the veteran's claim is reopened on the basis of new and material evidence, the RO should now consider the claim on the basis of all the evidence, both old and new. Any development deemed appropriate, including examination if found necessary, should be undertaken. In evaluating the claim, the RO should bear in mind that the presumption of credibility discussed above attaches only in the context of determining whether evidence is new and material to reopen. Now that the claim is reopened, the presumption no longer applies. If the determination remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board, if in order. The purpose of this remand is to ensure due process of law. D. C. SPICKLER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).